Product Liability – Can You Sue if a Product or Device is Defective or Causes Injury?

• 
  Louis DelSignore
  Lawyer

In today’s world, we all use a variety of products and devices throughout our day. When we purchase these products, we intend to use them to carry out our daily tasks. In return, we expect proper assurances from the companies promoting them that these products are safe and reliable. For the common consumer, this prompts a question- can you sue if a product or device is defective or causes injury?

According to the Supreme Court of Canada, yes you can. In Hollis v. Dow Corning Corp. the Court held:

“When manufacturers place products into the flow of commerce, they create a relationship of reliance with consumers, who have far less knowledge than the manufacturers concerning the dangers inherent in the use of products, and are therefore put at risk if the product is not safe.”

It is this relationship between consumer and manufacturer that attaches with it a duty of care upon the manufacturer who introduces a product to the market to ensure they are not negligent in any way. Further, this duty is owed to every consumer who purchases the product for reasonable use and can be extended to others depending on the supply chain.

Typically, allegations surrounding the negligent manufacturing and design of products are the most common product liability cases. Such cases can be brought under tort or contract law. Generally, the plaintiff’s claim must have the following elements:

1. A provable product defect;
2. Negligence on the part of the defendant that resulted in the product defect; and
3. Injury or loss to the plaintiff due to the product defect.

When first deciding to bring a claim, the plaintiff must work quickly and efficiently in the initial stages to ensure that they have protected their rights to start an action. The evidence intended to be relied on, such as the defective product, needs to be properly investigated and preserved before issuing a Statement of Claim. Another important task at the beginning of the claim process is to determine whether the plaintiff’s complaint will be a viable one in the first place, both in terms of legal and factual scenarios and what the level of probable recovery will be at the end for the plaintiff.

Litigation risk

Before initiating the claims process, the cost of litigation must be factored in. This includes assessing what evidence and witnesses will be required, how many experts and corresponding reports will be needed, as well as the subsequent fees attached to those. Further, a delicate balance must be struck between the costs of proving the claim, including the associated risk of losing, and the potential damage award. Depending on the type of product, these factors will vary, as well as there may be additional ones in need of attention.

Warnings and informed consent

When using a product, there may be certain risks inherent with it. Warning labels serve an important purpose in the commercial world for manufacturers as they provide information on the apparent and potential risks of using a particular product. Any potential risks associated with its reasonable use should be easily identifiable by the consumer and care should be undertaken by the manufacturer to warn of such dangers. The duty on a manufacturer to warn the everyday consumer and user of a product risk serves to inform them of such dangers before undertaking to use the product. This allows the consumer make an informed decision as to whether they wish to use the product or not. The warning label must describe the specific danger and be displayed in such a way that a reasonable person would understand the potential dangers associated with regular use. There are certain circumstances where a warning label will preclude the manufacturer from incurring liability. However, it does not absolve them of it entirely in Canada. In the event that a dangerous product could have been designed or manufactured differently without the same risk of harm, liability may be attached to the company who produced it.

Damages

A damage award is meant to compensate the injured party for their losses. It is a basic principle of tort law that the plaintiff must be placed int the position he or she would have been in absent the defendant’s negligence. To be successful in a claim and be awarded damages, proof of actual damage or loss is required. In product liability actions, claims for damages relating to actual injury or loss to a person or property may be general (often for personal injuries or damage to the property), special (for pecuniary losses, such as medical bills and out-of-pocket expenses) and consequential losses (connected to physical damage to a person or property).

If you think you have been injured as a result of a product, device or pharmaceutical, please contact Louis DelSignore for further and more detailed legal information.